A view from Gibraltar: "The Gibraltar Government must stand up in solidarity with the Chagos Islanders"

I could not agree less with those who think that the transfer of sovereignty of the Chagos Islands to Mauritius is “nothing to worry about” as far as Gibraltar is concerned.

OPINIONNEWS FROM THE OVERSEAS TERRITORIESGIBRALTARBRITISH INDIAN OCEAN TERRITORY

Charles A. Gomez

10/11/20243 min read

I could not agree less with those who think that the transfer of sovereignty of the Chagos Islands to Mauritius is “nothing to worry about” as far as Gibraltar is concerned. My hope, however, is that the Gibraltarian politicians who want to diminish the significance of this astonishing event are right and that when the dust has settled everything will go back to normal, including the long-running treaty negotiations with the EU (Spain) – but I doubt it.

Those of us who were law-undergraduates in the late 1970’s, were appalled by the way in which the British Government treated the Chagossians who inhabited what is now known as the British Indian Ocean Territory (“BIOT”).

These people were unceremoniously dispossessed in the period 1966 to 1971, to make way for the joint UK / US military base at Diego Garcia. The surrounding islands were depopulated and today, there is no activity of any kind, whether it be agricultural, commercial or industrial on the islands and the BIOT “Constitution” specifically provides that the territory is set aside for defence purposes and no person has the right of abode there.

Over the years, those who have been following the travails of the exiled Chagossians had hoped that at some point they would get legal redress. Their trek through the UK Courts was arduous but finally, in 2005, the House of Lords upheld the validity of the exclusionary BIOT “Constitution”.

Now, one might ask how a country like the UK, which is a founding signatory of the European Convention of Human Rights 1952, could get away with this. The answer is in the arcane system of what is known as British Imperial Law, whereby each British jurisdiction is classified as a separate juridical entity.

That is why we hear constant references to “His Majesty’s Government of Gibraltar” or “His Majesty’s Government of the Falkland Islands” etc. These are not mere formal titles but represent important legal concepts within the British legal system. Thus, not all British territories fall within the ambit of the European Convention of Human Rights in the same way as not all those territories fell within the ambit of the UK Member State before Brexit. In simple terms, the HM Government of the BIOT was not subject to the European Convention.

The most recent reference to British Imperial Law is to be found in a 2005 House of Lords case relating to fishing licences in the South Sandwich Islands. The Empire may have been wound up, but Imperial law prevails.

Chagos / Diego Garcia watchers had been hoping that the discussions with Mauritius would lead to a righting of the long-standing wrongs visited on the Chagossians. The result has however, been bitter-sweet. The Chagossians can go back to the outlying islands (not Diego Garcia, which remains a hermetically sealed military base) but Sovereignty has been given away to Mauritius, a country which, by all accounts, is not favoured by many islanders.

It would be a fanciful failure of basic common sense to skip around this precedent which can only damage Gibraltarian interests. I have racked my brain to think of any situation which is remotely similar and can only come up with the case of the Indian annexation of Goa in 1963, where the Portuguese colonial garrison faced overwhelming odds from the Indian Army, Navy and Air Force. Even then, after Goa had been overrun, the Portuguese Government held back from transferring sovereignty to India until the collapse of the Salazar dictatorship in 1974, when wholesale Portuguese decolonisation began. What a contrast to the Labour Government’s behaviour this week.

The Gibraltar Government must stand up in solidarity with the Chagos Islanders. At the very least, they must be consulted in a referendum before sovereignty can be disposed. The current optics and indeed, substance of what has happened are hugely detrimental to Gibraltar and the Falkland Islands and surrounding territories which face hostile territorial claims.

Also stark is the absence of any Parliamentary debate in Westminster. I am sure that there will be a great deal of resistance to this sell-out, not least because the power to dispose of sovereign territory lies within the Royal Prerogative and if anything, this measure should be more carefully scrutinised than any other transaction involving the Government of the United Kingdom of Great Britian and Northern Ireland. I still harbour the hope that the Mother of Parliaments will scupper this unfortunate deal and the Gibraltar Government, ever eager to please London, would do well to throw its lot with the causes of the Chagos Islands and British Parliamentary supremacy by showing courage and solidarity with our fellow British Overseas Territories citizens.

Charles A. Gomez is a Gibraltarian lawyer, Principal-Barrister at Charles Gomez & Co and former leader and founder of the New Gibraltar Democracy party.